Defendants
Newell K. Whitney et al. have marked certain documents
“Confidential” under the terms of the Standard
Protective Order entered in this case.[1] Plaintiff Bank of
the West (BOTW) moves the court under DUCivR 5-3(b) for an
order de-designating “all of the documents marked
‘Confidential' so that BOTW no longer is required
to file them under seal and so that the courtroom is not
closed to the public at trial.”[2] The court will deny the
motion.

BACKGROUND

The
instant dispute regarding the designation of documents has
been inveterately interwoven into this case. In May 2017, the
court entered an order denying without prejudice Defendants
request to maintain the confidential designation of certain
documents. In reaching its decision the court noted the lack
of communication between the parties and ordered the parties
to meet and confer regarding the designation of the remaining
documents at issue.[3] The parties met and conferred on May 16,
2017, and although the ultimate question of whether the
remaining documents are confidential was not resolved, the
parties did reach an agreement on the handling of
confidential documents “until such time as that
question may be addressed by the Court on the
merits.”[4]

On
January 17, 2018, the instant motion was filed where
Plaintiff seeks to “de-designate all of the documents
marked ‘Confidential.'”[5]

DISCUSSION

(i)
The Standard Protective Order Allows Defendants to Maintain
Their Confidential Designation.

The
Standard Protective Order sets forth certain designations for
categories of information and documents to help facilitate
discovery. “Protected Information” is defined as
“confidential or proprietary technical, scientific,
financial, business, health, or medical information
designated as such by the producing
party.”[6] The designation “CONFIDENTIAL-
ATTORNEYS EYES ONLY” may only be used for the following
types of past, current or future protected information:

(1) sensitive technical information, including current
research, development and manufacturing information and
patent prosecution information, (2) sensitive business
information, including highly sensitive financial or
marketing information and the identity of suppliers,
distributors and potential or actual customers, (3)
competitive technical information, including technical
analyses or comparisons of competitor's products, (4)
competitive business information, including non-public
financial or marketing analyses or comparisons of
competitor's products and strategic product planning, or
(5) any other PROTECTED INFORMATION the disclosure of which
to non-qualified people subject to this Standard Protective
Order the producing party reasonably and in good faith
believes would likely cause harm.[7]

“CONFIDENTIAL
INFORMATION”, which is the designation at issue here,
means all protected information that is not designated as
“CONFIDENTIAL-ATTORNEYS EYES ONLY.”[8]

The
Standard Protective Order provides that “[t]he burden
of proving that the designation is proper shall be upon the
producing party.”[9] Thus, the burden is on Defendants to
maintain their CONFIDENTIAL INFORMATION designation. In
support of that burden Defendants offer a privilege log that
gives a bates number for documents and a brief description.
For example, bates number MM1-1712 is “Bank
Statements” and NC1-125 is “2014 Tax
Returns.”[10]Having reviewed the privilege log the
court finds the documents fit the definition of CONFIDENTIAL
INFORMATION as set forth above. The undersigned finds that
Defendants have done enough to warrant continued protection
of the documents at issue. The court is not persuaded by
Plaintiff's countervailing arguments.

Plaintiff
argues Defendants have failed to meet their “heavy
burden” and cannot overcome the “fundamental
presupposition that it is the responsibility of judges to
avoid secrecy, in camera hearings and the concealment of the
judicial process from public view.”[11] The court
agrees with the general principles of openness. Indeed,
“Courts have long recognized a common-law right of
access to judicial records, ” but this right “is
not absolute.”[12]

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
Standard Protective Orders seeks to strike a balance between
the need to protect a litigant&#39;s information and the
public interest in an open process. This balance is not
perfect, but there are procedures within the Standard
Protective Order, such as the opportunity to challenge a
designation, that work toward the ideal world. The instant
matter is unlike those cited to by Plaintiff. For example in
M.M. v. Zavaras, [13] an unnamed plaintiff sought to
proceed in pseudonym hiding its identity from the public
view. Here the litigants are known. And, the Tenth Circuit in
JetAway Aviation, LLC v. Bd. of County Com&#39;rs of
County of Montrose, Colo.[14]applied controlling precedent
that rejects the sealing of documents on ...

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